Court of Appeal for Ontario

Citation: R. v. Renshaw, 2008 ONCA 379

Date: 2008-05-13

Docket: C46781

Before: Cronk, Epstein JJ.A. and Glithero R.S.J. (ad hoc)

Between:

Her Majesty the Queen Respondent

and

Larry Renshaw Appellant

Counsel: Neil R. Jones, for the appellant Xenia Proestos, for the respondent

Heard and released orally: May 2, 2008

On appeal from the convictions entered by Justice J. Cavarzan of the Superior Court of Justice on October 2, 2006.

Endorsement

[1] Following a trial by a judge alone, the appellant was convicted of one count each of possession of a controlled drug for the purpose of trafficking and production of a controlled substance. The drug in question was marijuana. The appellant appeals his convictions. He has abandoned his appeal against sentence.

[2] In support of his conviction appeal, the appellant challenges the trial judge’s discretionary decision under s. 24(2) of the Charter to admit at trial the evidence of drugs found in the appellant’s residence during what the trial judge found was an illegal search.

[3] The trial judge held that a Charter s. 8 violation occurred in this case and that the violation was serious because it involved trespass by state agents onto private residential premises without a warrant. Before this court, the appellant accepts these findings, as does the Crown. The trial judge also ruled, however, that under the analysis mandated by R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.), the evidence of the drugs should nevertheless be admitted.

[4] The appellant makes two main complaints regarding the trial judge’s s. 24(2) analysis. First, he argues that the Charter breach was more serious than was found by the trial judge. Second, he submits that the trial judge erred in his approach to the requisite balancing exercise at the final stage of his s. 24(2) analysis, by failing to properly assess and take account of the seriousness of the breach. The appellant says that on proper analysis of the Collins factors, the evidence of the drugs should have been excluded.

[5] We disagree for the following reasons.

[6] First, there is no dispute that a trial judge’s decision on a s. 24(2) inquiry attracts great deference from this court and should not be interfered with unless it reflects an error of law or is unreasonable. See for example, R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.) at para. 59.

[7] Second, there is no suggestion that the first Collins factor – trial fairness – is implicated in this case. The parties acknowledge that the admission of the impugned evidence would not affect trial fairness. We agree.

[8] Third, with respect to the second Collins factor – the seriousness of the breach – the trial judge found that the breach of the appellant’s s. 8 Charter right was serious. The appellant invites this court to conclude, on various grounds, that the breach was even more serious than was found by the trial judge.

[9] While we agree, and the Crown appears to concede, that it would have been preferable for the trial judge to expressly consider in his reasons the reasonableness of the CAS worker’s belief that she had legal authority to enter the appellant’s home to investigate whether the home contained a child in need of protection, on this record it is clear that the CAS worker had an honest, albeit mistaken, belief that she had the requisite authority. The appellant does not challenge the trial judge’s finding that the involved police officers were entitled to rely on the CAS worker’s authority to enter the premises when carrying out their duty to respond to a request for assistance by a childcare worker.

[10] In our view, the record in this case does not support a finding of bad faith by the police. The trial judge expressly found that the Charter violation was not flagrant. He did not find that it was brazen, deliberate or wilful; nor does the record support such a characterization of the breach.

[11] On the findings of the trial judge, this was not a police investigation and the police had no prior interest in the appellant. The police had a duty to respond to a request for assistance from the CAS and the evidence supported the propriety of a CAS concern about the safety of the CAS worker who attended at the appellant’s home. The trial judge also found that the police did not participate in questioning the appellant and that they were performing their primary function of keeping the peace by providing protection to the CAS worker. Finally, we reiterate that the trial judge found, and the appellant accepts, that the involved police officers were entitled to assume that the CAS was exercising its authority lawfully when the CAS worker entered the appellant’s home.

[12] In all these circumstances, we agree with the trial judge that the police cannot be said to have acted in bad faith.

[13] The warrantless search of a personal residence is a serious matter. That said, this case simply does not fall within the most serious category of Charter breaches. The trial judge’s assessment of the seriousness of the breach is entitled to particularly strong appellate deference. See R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 (S.C.C.) at para. 72.

[14] Finally, the last stage of the Collins analysis involves the assessment of the negative impact, if any, on the administration of justice that would be occasioned by the admission of the evidence. We see no error in the trial judge’s analysis of this factor. He correctly recognized that the Charter violation was a serious one “in a number of respects”. He was also properly alert to the serious impact on the administration of justice that would be occasioned by the exclusion of the evidence. We agree with his conclusion that, on the facts of this case as he found them, the requisite balancing of all relevant factors under the third stage of Collins mandated the admission of the evidence.

[15] Accordingly, for the reasons given, the appeal is dismissed.

“E.A. Cronk J.A.”

“G. Epstein J.A.”

“C. Stephen Glithero R.S.J. (ad hoc)”